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59 FLRA No. 140
DEPARTMENT OF VETERANS AFFAIRS
OF GOVERNMENT EMPLOYEES
March 30, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James J. Sherman filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated the agreement by not selecting the grievants for two posted vacancies and instead selecting two external candidates for the vacancies.
For the following reasons, we set aside the entire award.
The Union filed a grievance protesting the Agency's failure to properly consider and select the two grievants for two vacant positions as Contract Specialist Grade GS - 1102-09, Target GS-11. Award at 2-3. The grievants submitted their applications to the Human Resources staffing specialist, who then forwarded a list of "qualified" candidates to Management. Id. at 2, 5. The list included the grievants and seven other applicants. Id. at 3. The selecting official determined that none of the nine candidates on the list possessed the experience or skills for which he was looking and decided not to interview any of the candidates on that list. Id.
The selecting official expanded the area of consideration and was given a second list of candidates. Id. The selecting official then hired two candidates from the expanded area of consideration list, whom he considered to be "exceptionally well qualified." See id.
After the Union filed a grievance over these selections, it was not resolved and proceeded to arbitration. The Arbitrator framed the issue as "[W]hether the Agency violated the contract when it failed to select [the grievants] for the position of Contract Specialist[.] If so, what is the proper remedy?" See Award at 2.
The Agency argued that it acted within its rights and did not violate the agreement because it fully considered both grievants before expanding the area of consideration. Award at 4. The Agency explained that it did not have to select the internal candidates, it merely had to fully consider them. Id. The Agency asserted that it had the right to expand the area of consideration to find better qualified candidates. Id.
The Union contended that the Agency violated the agreement. Id. at 3. The Union pointed out that the grievants applied for the vacant positions and were deemed qualified arguing that despite being qualified for the positions, the Agency interviewed neither grievant and thus violated the agreement by not properly considering them. Award at 3.
The Union asserted that the selecting official was required to select from the qualified internal candidates on the initial list and failing to do so violated the grievants' rights under the agreement. Id. The Union also alleged that expanding the area of consideration without Union consent violated the agreement. Id. at 3-4.
The Arbitrator first examined whether the grievants were qualified for the positions. Id. at 5. The Arbitrator found the staffing specialist, who had placed the grievants on the initial list of "qualified" candidates, was an expert and therefore "in a better position to understand the requirements of the position and better able to judge who was, or was not, qualified to fill that provision." See id. at 6. Based on the staffing specialist's expertise, the Arbitrator concluded the grievants, as well as the other internal candidates, were qualified. Id. at 6-7. [ v59 p781 ]
The Arbitrator then addressed whether the Agency violated the agreement, specifically Article 22, § 8, by expanding the area of consideration. [n2] Id. The Agency argued that it had the right to expand the area of consideration because the initial list did not contain three qualified candidates. See id. at 7. However, the Arbitrator found that because all seven of the candidates on the initial list were "qualified," the Agency violated the agreement when it expanded the area of consideration without Union consent. Id.
The Arbitrator concluded that the Agency also violated the agreement when it failed to give the grievants "first and full consideration" as the agreement required. [n3] Id. The Arbitrator reached this conclusion because the Agency did not interview or notify the grievants of their non-selection for the vacancies. Award at 7.
With respect to the appropriate remedy for the violations of the agreement, the Arbitrator concluded that under the agreement, the remedy for the violations was to grant the grievants "priority consideration" throughout Network 7, an area larger than the Network Business Office, in which the original vacancies were located. Id. at 7-8.
III. Positions of the Parties
A. Agency's Exceptions
1. The award is deficient as contrary to law.
The Agency alleges that the award is contrary to law because "it is long standing that management has the right to select from whatever source." See Exceptions at 5 (citing 5 U.S.C. § 7106(a)(2) and Tidewater Va. Fed. Employees Metal Trades Council, AFL-CIO, 31 FLRA 131, 135 (1988) (Tidewater)). The Agency asserts that the award excessively interferes with its right to select. Exceptions at 5.
2. The award is deficient as failing to draw its essence from the agreement.
The Agency argues that the award fails to draw its essence from the agreement in four ways. The Agency first argues that the award fails to draw its essence from the agreement because the Arbitrator misinterpreted the agreement to require the Agency to select individuals from the internal candidate list to fill the vacancies. Exceptions at 4. The Agency argues that the internal candidates must merely be considered before the Agency may expand the area of consideration. Id.
Second, the Agency alleges that the award fails to draw its essence from the agreement because the Arbitrator found that the Agency could not expand the area of consideration for the job vacancies without Union consent. Exceptions at 6. The Agency argues that the Arbitrator erroneously read Article 22, § 8(C)(1) and (2) to mean that the area of consideration may only be expanded when the Union gives mutual consent even if the Agency finds evidence that suggests that the narrow area of consideration is unlikely to produce at least three qualified candidates. Id. at 5-6 (citing Article 22 of the agreement). The Agency contends that each subsection of Article 22, § 8(C) should be read independently. Id.
Third, the Agency maintains that the award fails to draw its essence from the agreement because the Arbitrator found that "full consideration", under Article 22, § 8, required the Agency to interview the internal candidates despite the language in Article 22, § 11(D) making interviews discretionary. Id. at 6-7.
The Agency's final argument is that the award fails to draw its essence from the agreement because the Arbitrator ordered the Agency to provide priority consideration to the grievants throughout Network 7. Id. at 7. The Agency claims that the Arbitrator ignored the language of the agreement requiring the selecting official to exercise the priority consideration, in this case the same selecting official who rejected the grievants' applications. Id. at 7-8. The Agency alleges that the selecting official works in the Network Business Office and does not have the authority to force other Network 7 managers to grant priority consideration to the grievants. Id. at 8.
3. The award is deficient as based on nonfact.
The Agency alleges that the award is deficient because it is based on three different nonfacts. First, the Agency asserts that the Arbitrator erroneously stated that the grievants submitted their applications to the Office of Personnel Management (OPM) and OPM declared the grievants qualified for the vacancies. Exceptions at 3. The Agency argues that the Arbitrator "did not have a basic understanding of the facts of the selection process" as OPM was not involved in this case at all. See id.
Second, the Agency alleges that the Arbitrator erroneously found that there were seven applicants on the initial list given to the selecting official when there were actually nine candidates on that list. Id. [ v59 p782 ]
Finally, the Agency alleges that the Arbitrator erroneously found the staffing specialist was an expert because she worked for OPM. Id.
B. Union's Opposition
The Union's opposition did not address the argument that the award is contrary to law. Opposition at 3 4.
1. The award draws its essence from the agreement.
In response to the Agency's argument that the Arbitrator misinterpreted the agreement to require the Agency to select internal candidates, the Union argues that the Arbitrator correctly found that the agreement prohibited the Agency from ignoring the internal candidates and expanding the area of consideration. Opposition at 4. The Union claims that the Agency's argument is contrary to the parties' intent to allow the expansion of the area of consideration only if there were not three qualified candidates or with the consent of both parties. Id. The Union argues that in this case, there were nine qualified candidates. Id.
The Union also argues that the Arbitrator correctly determined that the Agency could not expand the area of consideration without Union consent. Id. at 3.
Regarding the alleged failure to interview the grievants, the Union asserts that the Agency conducted interviews with the second set of candidates and therefore was obligated to interview all candidates for the vacancies in order to comply with the requirement to give internal candidates full consideration. Id.
Finally, the Union argues that "priority consideration" is the appropriate remedy under the agreement for grievants who did not receive proper consideration for a prior vacancy. Id. According to the Union, there are no limits in the agreement on the area where an employee may exercise "priority consideration" and therefore, the Arbitrator was correct in granting the grievants "priority consideration" throughout the entire Network. Opposition at 3.
2. The award is not based on nonfact.
In response to the Agency's argument that the award was based erroneously on the grievants submitting their applications to OPM and OPM declaring the grievants qualified, the Union argues that it is irrelevant to whom the grievants submitted their applications and whether OPM was peripherally involved in this case. Opposition at 3.
Second, the Union argues that the number of applicants on the initial list is not relevant to the award. Id.
Finally, the Union argues that the staffing specialist was an expert whether the specialist worked directly for OPM or for another facility. Id. Further, the issue of where the staffing specialist worked was irrelevant to the outcome of the grievance. Id.
IV. Analysis and Conclusions
A. The award is contrary to law.
When an exception alleges that an award is contrary to law, the Authority reviews the question of law raised and the award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
The Agency argues that the award violates its right to select from any appropriate source. Exceptions at 5 (citing § 7106(a)(2) of the Statute). When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in BEP. United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 151-53 (1997) (BEP).
The Authority finds that the award in this case affects the right to select under § 7106(a). Section 7106(a)(2)(C) affords agencies the discretion to select candidates from any appropriate source without limitation. United States Dep't of Def., Ala. Air Nat'l Guard, Montgomery, Ala., 58 FLRA 411, 412 (2003) (citing ACT, Pa. State Council, 54 FLRA 552, 558 (1998)). The Arbitrator found that, absent Union agreement, the Agency could not expand the search for candidates beyond the pool of internal candidates if there were three internal qualified candidates. Award at 7. Under these circumstances, as the Agency could not select from any other appropriate source without the Union's consent, we conclude that the award affects the right to select. ACT, Treasure State Chapter #57, 56 FLRA 1046, 1048 (2001) (ACT).
Upon finding that an award affects a management right, the Authority applies a two-prong test to determine if the award is deficient. BEP, 53 FLRA at 152-53. [ v59 p783 ] Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a provision in the agreement that was negotiated pursuant to § 7106(b) of the Statute. Id. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or provision in the agreement at issue. Id. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties. Id.
Under prong I of BEP, as relevant here, the Authority considers whether the provision, as interpreted and applied by the Arbitrator, constitutes either an appropriate arrangement or a procedure within the meaning of § 7106(b). See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109, 110 (2002); BEP, 53 FLRA at 152-53. Although neither the parties nor the Arbitrator identify the provision as a procedure or an appropriate arrangement and the precedent cited by the Agency does not provide any guidance as to whether this provision is either a procedure or an appropriate arrangement, Authority precedent supports finding that the Arbitrator's interpretation of the provision does not constitute either a procedure or an appropriate arrangement under § 7106(b).
Authority precedent has specifically held that proposals preventing management from expanding the area of consideration when filling a vacancy or preventing concurrent solicitation from all sources are not § 7106(b)(2) procedures. ACT, 56 FLRA at 1048; NTEU, 43 FLRA 1279 (1992); AFGE, Local 2022, 40 FLRA 371 (1991). The Arbitrator's interpretation of the provision in this case establishes that the provision does not constitute a procedure within the meaning of the Statute because the Arbitrator interpreted the provision as prohibiting the Agency from unilaterally expanding the area of consideration or concurrently soliciting from all appropriate sources. Award at 7.
In deciding whether the provision, as enforced by the Arbitrator, is an appropriate arrangement, we note that the Agency argues only that the award excessively interferes with its right to select. Exceptions at 5. Therefore, we confine our discussion to whether the provision, as interpreted, excessively interferes with the Agency's management right.
We find the provision is not an appropriate arrangement because the Arbitrator interpreted it to mean that the Agency, absent Union consent, could not expand the search area beyond the pool of internal candidates, since there were more than three qualified internal candidates. Award at 7. The Authority has found similar proposals to excessively interfere with management's right to select. Oklahoma City, 58 FLRA at 111; NTEU, 45 FLRA 429 (1992) (finding that a proposal requiring the Agency to promote internal employees to higher-graded positions was not an appropriate arrangement under § 7106(b)(3) because the restriction on the Agency, preventing it from selecting a candidate from any other source when filling a vacancy, outweighed the possible benefits to employees).
Because the provision in this case, as interpreted by the Arbitrator, does not constitute a procedure or an appropriate arrangement within the meaning of the Statute, the award fails to satisfy prong I of BEP and is contrary to § 7106(a)(2)(C) of the Statute. As such, the Authority does not need to consider prong II of BEP. BEP, 53 FLRA at 152-53. Because the award fails to satisfy prong I of BEP, the Authority sets aside the award as contrary to law.
B. The award fails to draw its essence from the agreement.
In order to demonstrate that an award fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See e.g., United States Dep't of the Treasury, United States Customs Serv., New York, N.Y., 39 FLRA 278, 284 (1991) (Customs, New York).
The Agency argues, in its third essence exception, that the Arbitrator's interpretation of the agreement is inconsistent with express language in the agreement. Exceptions at 6-7. The Agency contends that the Arbitrator's interpretation that the "first and full consideration shall be given to any best qualified candidates within the facility" language in Article 22, § 8(C) requires the conduct of interviews for all qualified candidates is so unfounded in reason and fact, and so unconnected with the wording and purpose of § 11(D) of the same article that it evidences a manifest disregard for the agreement and does not represent a plausible interpretation.
It is clear from the language set forth in § 11(D) of Article 22 that the conduct of interviews is solely within the Agency's discretion and that doing so is not required [ v59 p784 ] by the agreement. Specifically, the provision uses the phrase: "if interviews are used" in each of the first two sentences of a three sentence provision. See Agreement at Article 22 § 11(D). This language clearly indicates that interviewing candidates is not mandatory and the agreement does not require the Agency to conduct interviews for every vacancy. Id. Although § 11(D) also states "if interviews are used, all candidates must be interviewed if reasonably available," the Arbitrator made no finding that applicants from either list provided to the selection official were interviewed nor did he make any determination regarding the availability of the grievants.
Further, the Arbitrator acknowledged that the Agency specifically argued, "[m]anagement was under no obligation to interview any of the candidates . . . ." Award at 4. Therefore, the Arbitrator was aware of the argument when making the award. Even though the Arbitrator cites Article 22, in its entirety as the pertinent provision of the agreement, he made no attempt to reconcile the language in § 8(C) and § 11(D) or to justify his interpretation of § 8(C) in light of the clear and plain language in § 11(D). As a result, the Authority concludes that the Arbitrator's interpretation of § 8(C) finding that first and full consideration was not given because the grievants were not interviewed ignored the plain language of § 11(D). Thus, it is an interpretation that does not represent a plausible interpretation, evidences a manifest disregard for the agreement and is deficient because it fails to draw its essence from the agreement. Customs, New York, N.Y., 39 FLRA at 284. See United Paperworkers Int'l Union v. Misco, 484 U.S. 29, 38 (1987). See also Department of the Treasury, United States Customs Serv., 37 FLRA 309, 316-17 (1990); Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200, 1206 n.6 (9th Cir. 1989) (en banc); United Food & Commercial Workers Union, Local 1119 v. United Markets, Inc., 784 F.2d 1413, 1415 (9th Cir. 1986).
C. The Authority will not address the Agency's additional
Based on the determination to set aside the award, the Authority finds it unnecessary to address the Agency's additional essence exceptions or the Agency's nonfact exceptions because they are irrelevant to the outcome of this decision. United States Dep't of Def., Def. Mapping Agency, Hydrographic/Topographic Ctr., Wash., D.C., 47 FLRA 1187, 1204 n.5 (1993).
For the foregoing reasons, we set aside the award.
The relevant provisions of the parties' agreement provide that:
Article 22 MERIT PROMOTION
Section 8 - Vacancy Announcements and Areas of Consideration
A. All positions to be competitively filled in the bargaining unit by actions covered by this Article shall be posted unless filled under Section 7 which provides for exclusions from coverage. For the same type of vacancy (title, series, and grade), a certificate may be used for up to ninety (90) days to refer candidates without re-announcing the vacancy.
B. Prior to considering candidates from outside the AFGE bargaining unit, the Employer agrees to first consider internal candidates for selection.
C. Areas of Consideration:
The areas of consideration will be:
FIRST - Facilitywide (including satellites) except:
1. This area may be made more narrow or expanded through mutual agreement.
2. Where evidence suggests that the area of consideration is not expected to produce at least three qualified candidates, it may be expanded. The vacancy announcement will identify the expanded area of consideration.
3. For VA Headquarters unit positions, GS-12 and above, the area of consideration may be expanded.
However, in all cases, (1, 2, and 3 above), first and full consideration shall be given to any best qualified candidates within the facility (or more narrow area).
The remainder of Article 22 § 8 is not relevant to this decision.
Section 11 - Sources of Information on Candidates
Parts A-C are not relevant to this decision.
D. Interviews - If interviews are used, they must be job-related, reasonably consistent, and fair to all candidates. Also, if interviews are used, all candidates must be interviewed if reasonably available, in person or by telephone where circumstances warrant. If more than one management official is conducting the interview, a [ v59 p785 ] union representative may be present upon the employee's request.
Section 13 - Priority Considerations
A. Definition - For the purpose of this article, a priority consideration is the bona fide consideration for noncompetitive selection given to an employee as the result of a previous failure to properly consider the employee for selection because of procedural, regulatory, or program violation. Employees will receive one priority consideration for each instance of improper consideration.
B. Processing - The procedures for processing a priority consideration shall be:
1. Employees will be notified in writing by the authorized management official of entitlement to each priority consideration. Such notice will advise employees that if a vacancy is announced and posted and the employee wishes to exercise their priority consideration, the employee should submit the necessary application to HRMS with a written request that they wish priority consideration for the vacancy.
2. Priority consideration is to be exercised by the selecting official at the option of the employee for an appropriate vacancy. An appropriate vacancy is one for which the employee is interested, is eligible, and which leads to the same grade level as the vacancy for which proper consideration was not given.
The remainder of Article 22 § 13 is not relevant to this decision.
Article 42 - GRIEVANCE PROCEDURE
Sections 1-6 are not relevant to this decision.
Section 7 - Procedure
Employees and/or their representatives are encouraged to informally discuss issues of concern to them with their supervisors at any time. Employees and/or their representatives may request to talk with other appropriate officials about items of concern without filing a formal grievance if they choose. In the event of a formal filing of a grievance, the following steps will be followed:
Step 1-4 and Notes 1-4 are not relevant to this decision.
Note 5: It is agreed that grievances should normally be resolved at the lowest level possible. However, there will be times when a grievance may be more appropriately initiated at the second or third step of the procedure for example, when a disciplinary action is taken by a Service Chief or higher level, when the supervisor at the lower level clearly has no authority to resolve the issue, or when the Union grieves an action of a management official other than a Step 1 supervisor. When a grievance is initiated at a higher step, the time limits of Step 1 will apply.
File 1: Authority's Decision in 59 FLRA No.
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 140 - Authority's Decision
Footnote # 2 for 59 FLRA No. 140 - Authority's Decision
Footnote # 3 for 59 FLRA No. 140 - Authority's Decision